IN THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-7759 of 2015
&
C.P. No. D-134 of 2016
Present:
Mr. Justice Irfan Saadat Khan
Mr. Justice Zafar Ahmed Rajput
Dates of hearing: 20.01.2016, 28.01.2016, 02.02.2016, 04.02.2016,
10.02.2016, 16.02.2016, 25.02.2016 and 04.03.2016.
Petitioners: Naeem Sajid and others in C.P. No.D-7759 of 2015,
through M/s. Khawaja Shamsul Islam, Khawaja Saiful Islam, Shehzad Mehmood and Imran Taj, Advocates.
Petitioner: Mst. Hira Siddiqui in C.P. No.D-134 of 2016,
through, Khawaja Muhammad Azeem, Advocate.
Respondents: Federation of Pakistan and Pakistan Rangers,
No.1&5 through M/s. Salman Talibuddin, Additional Attorney General for Pakistan, and Muhammad Aslam Butt, Deputy Attorney General for Pakistan.
Respondents: Province of Sindh and others,
No.2, 3, 4, 6 & 7 through M/s. Shahadat Awan, Prosecutor General Sindh, Muhammad Sarwar Khan, Addl. Advocate General Sindh, Saifullah, Assistant A.G. Sindh, and Jan Muhammad Khohro, Assistant A.G. Sindh alongwith DSP Mazhar Hussain Alvi.
IRFAN SAADAT KHAN, J. The facts and the law points that arise for consideration in both the petitions since are common; hence, the same have been heard and disposed of by this common judgment.
2. The facts, in brief, pleaded in C.P. No. D-7759 of 2015 are that the petitioner No.1 (Naeem Sajid) is stated to be an exporter of hand-knotted carpets, who is running his show-room under the name and style Peena Carpets Industries in Karachi. On 27.5.2015 he was arrested by the Counter Terrorism Department (CTD) of Sindh Police from his house and he remained in their custody for eight days; however, when no charge was found against him, he was released. Thereafter, on 03.07.2015 he was again picked-up by the Pakistan Rangers (Sindh). On that his family members filed a Constitution Petition bearing No.D-3980 of 2015 before this Court, wherein the Deputy Superintendent, Pakistan Rangers (Sindh) filed his comments on 27.08.2015 denying his arrest, but on 04.09.2015 he was produced before the Anti-Terrorism Court No.1 by the Rangers for execution of Preventive Detention under Section 11EEE(1) of the Anti-Terrorism Act, 1997 together with the Detention Order mentioning therein that he was involved in offences of extortion/Bhatta, target killing and kidnapping. Later on, his custody was handed over to Sachal Police by the Pakistan Rangers, who obtained his remand from the Anti-Terrorism Court (ATC). In the Meantime, the said petitioner moved an application for bail, however, on 10.12.2015 it was informed to the ATC by the prosecution that the name of said petitioner was included in the case/F.I.R. bearing No.195 of 2015, registered under Sections 302/324/427/109/34 P.P.C. read with Section 7 of ATC and Section 512 Cr. P.C. at P.S. Sachal, District Malir, known as Safooran Goth Case wherein 27 men and 18 women were killed. However, during hearing of the bail application a letter, dated 9.12.2015, issued by the Ministry of Interior (hereinafter referred to as the Letter) was produced before the ATC to the effect that the case of the petitioner No.1 has been sanctioned for trial under the PAKISTAN Army Act, 1952 (hereinafter referred to as the Act of 1952). Hence, the ATC is seized from proceeding in the matter any further and sent the case of the petitioner No.1 to the Military Court for trial. It is against that Letter that this petition has been filed, with the following prayers:
A. Declare that the impugned letter dated 9.12.2015 issued by the Respondent No.1 for sending trial of the aforesaid case/FIR NO.195 u/s 302/324/427/109/34, PPC read with Section 7 of the Anti-Terrorism Act, read with Section 152 Cr.P.C., to the Military Courts to the extent of Petitioner No.1 only, is illegal, unconstitutional, as well as violative of Articles 9, 10, 10-A, 14, 25 and 175 of the Constitution of Islamic Republic of Pakistan, 1973.
B. Declare that the impugned letter dated 9.12.2015 to the extent of Petitioner No.1 only, is violative of Section 17 and 24 of the Pakistan Protection Act, 2014.
C. Declare that due to inconsistency in between the mandatory provisions of Protection of Pakistan Act, 2014 and the Act II of 2015 whereby Pakistan Army Act was amended, due to inconsistency of the provisions of Protection of Pakistan Act, specially its section 24, the Protection of Pakistan Act shall prevail upon and shall have the over-riding effect on the provisions of Act II of 2015 more particularly in respect of its newly inserted Sub-Section (5) of Section 2.
D. Declare and direct that the case of the Petitioner No.1 shall remain on the file of Respondent No.3/ATC Court and shall be tried by that court accordingly.
E. Declare that the letter of Respondent No.2 dated 26.10.2015 is violative of the rules of natural justice as well as Section 24-A of the General Clauses Act.
F. Suspend the operation of the impugned letter of Respondent No.1 dated 9.12.2015 to the extent of Petitioner No.1 only, as well as restrain the Respondents, more particularly the Respondents No.1 to 6, not to transfer the trial of Petitioner No.1 and to hand over his custody for trial before the Military Court, until the questions and interpretation of laws is properly made by this Honble Court.
F. Grant cost of the Petition.
G. Pass any other or further order(s) in favour of the petitioner and against the respondents which may be deemed fit and proper under the facts and circumstances of this case.
3. Precisely, the facts pleaded in C.P. No. D-134 of 2016 are that on 17.06.2015, Sultan Qamar Siddiqui was arrested by the officials of the Pakistan Rangers (Sindh) and produced him before the ATC No.1 on 18.6.2015; thereafter, on 15.9.2015 his arrest was shown as a co-accused in F.I.R. No.195 of 2015, registered at P.S. Sachal, i.e. Safooran Goth case. On 03.07.2015, the officials of Pakistan Rangers also arrested Hussain Umar Siddiqui, the real brother of Sultan Qamar Siddiqui, from his residence and produced him for the first time on 04.09.2015 before the ATC No.1 and obtained an order for his preventive detention. Thereafter, on 15.9.2015 his arrest was also shown as a co-accused in F.I.R. bearing No.195 of 2015 and their case was also sanctioned for trial under the Act of 1952, vide Letter dated 09.12.2015, which has been impugned in the petition, with the following prayers:
a. Declare the impugned action annexure I on the part of the Respondents No.1, 2 & 4 to be absolutely illegal, uncalled for and amounts to discrimination and pick and choose policy to which has no legal footings as such same merits to be quashed.
b. Declare that the impugned action/letter dated 09.12.2015 issued by the Respondent No.1 for sending of trial of F.I.R. No.195/2015 under Section 302, 324, 427, 109 & 34 PPC read with section 7 A.T.A. to the Military Court to the extent of Hussain Umar Siddiqui and Sultan Qamar Siddiqui is illegal, unconstitutional, as well as violative of Articles 9, 10-A, 14, 24 and 175 of the Constitution of 1973.
c. To suspend the operation of the illegal action/letter annexure I to be absolutely illegal, uncalled for and in flagrant violation of law and the legal proposition involved.
d. To quash the proceedings of the case as far as Sultan Qamar Siddiqui is concerned.
e. Any other relief or reliefs in favour of Hussain Umar Siddiqui and Sultan Qamar Siddiqui and against the respondents which may be deemed fit and proper under the facts and circumstances of this case.
f. To declare and direct that the case if any to remain on the file of Respondent No.3/ATC Court and shall be tried by that court accordingly.
g. To order the learned Presiding Officer of A.T.C. VI Karachi to decide the pending bail applications in accordance to law.
h. Costs of this petition in favour of the petitioner.
4. Mr. Khawaja Shamsul Islam Advocate has appeared on behalf of the petitioners in Constitutional Petition No.D-7759 of 2015 and submitted that the petitioner No.1 is innocent and his name has wrongly been included by the police without any evidence and lawful authority, illegally and malafidely in the Safoora Goth case and such act of the police officials amounts to illegal detention of the petitioner No.1, which evidently reflects malice in law and malice on facts. Mr. Khawaja has added that the officials of Pakistan Rangers illegally handed over the custody of the petitioner No.1 to the Sachal Police, who produced him before the ATC on 16.09.2015 by showing his date of arrest as that of 15.09.2015, whereas he was in the custody of law enforcing agencies since 03.07.2015. He has also submitted that the allegations against the petitioner No.1 that he has facilitated the co-accused persons by purchasing the weapon for them, which were subsequently used in the Safoora Goth case, is ill-founded, as no person of prudent mind could apprehend that some weapons could be purchased four years before the alleged offence. According to him the petitioner No.1 could not be associated with the Safoora incident case in any manner as he has already been declared innocent by the CTD, therefore, it would be unjustified if the case of the petitioner No.1 is tried with the case of other co-accused persons under the Act of 1952, as amended by the Pakistan Army (Amendment) Act, 2015 (hereinafter referred to as the Act of 2015). According to him the case of the petitioner No.1, at worst, could only be tried by the ATC as the case of petitioner No.1 falls outside the jurisdiction of a Military Court. Hence, according to the learned counsel the impugned Letter is contrary to the rules of natural justice and in violation of Articles 9, 10, 10-A and 14 of the Constitution of the Islamic Republic of Pakistan, 1973, as the fundamental rights of a citizen could not be infringed on account of fanciful, imaginary and arbitrary ideas and on presumptions of the State functionaries
5. Mr. Khawaja has maintained that the impugned Letter has no legal value being contrary to Sections 20-A & 24-A of the General Clauses Act, 1897 as it was issued without proper gazette notification. Besides, the impugned Letter is violative of the Rules of Business 1973 particularly rules 14, 18 & 21 as it was issued by the Ministry of Interior and not by the Ministry of Law, Justice and Human Rights, hence, the impugned Letter is liable to be set at naught on this score. He has further maintained that the Protection of Pakistan Act came into force in the year 2014 and Act of 1952 was amended on 07.01.2015, while the allegation leveled against the petitioner No.1 pertains to that of the year 2010, which would mean that the law has been applied retrospectively; which is in violation of Article 12 of the Constitution of Pakistan. According to him, in the given circumstances of the case, Act of 1952 has illegally been applied; hence the same has been assailed through the instant Constitutional Petition. He has also maintained that the questions involved in the instant Petition require interpretation of Act of 1952, as amended by the Act of 2015, and the Protection of Pakistan Act, 2014 (hereinafter referred to as the Act of 2014); hence, this Court under its Constitutional jurisdiction, is fully empowered to interpret the aforesaid laws and to declare the transfer of the case of petitioner No.1 to the Military Court through the impugned Letter as illegal, mala fide, without jurisdiction, malice in law and malice on facts and violative of the rules of natural justice and strike down the same in the best interest of justice and fair play. Lastly, he contended that the petitioner/accused apprehends that he would not have opportunity of fair trial before the Military Court. In support of his arguments, Mr. Khowaja has placed his reliance on the following decisions:
1. Mian Manzoor Ahmed Wattoo v. Federation of Pakistan and 3 others (PLD 1997 Lahore 38)
2. Federation of Pakistan and another v. Malik Ghlam Mustanfa Khar (PLD 1989 Supreme Court 26)
3. Arbab Akbar Adil v. Government of Sindh through Home Secretary, Government of Sindh, Karachi (PLD 2005 Karachi 538)
4. Syed Mubbashar Raza v. Government of Punjab through Secretary Home Department and 2 others (PLD 2015 Lahore 20)
5. Shahzad Abid v. The State (2003 P Cr .LJ 661)
6. Jahanghir Akhter Awan and 2 others v. The State and 8 others (PLD 2000 Karachi 89)
7. Khizar Hayat v. The State (2012 SCMR 1066)
8. Muhammad Shoaib and others v. The State (2013 MLD 1469)
9. Nizamuddin v. The State (PLD 2014 Sindh 248)
10. Federal Government M/o Defence, Rawalpindi v. Lt. Col. Munir Ahmed GillL (2014 SCMR 1530)
11. Rang Mirani v. The State (2003 YLR 2007)
12. Iftikhar Ahmed v. The State (1990 SCMR 607)
13. Sheikh Muhammad Asalm and another v. The State and 2 others (1991 MLD 1973)
14. The State v. Mirza Azam Beg, P. C. S. and another (PLD 1964 (W. P.) Lahore 339)
15. Ramesh M. Udeshi v. The State (2002 P Cr. LJ 1712)
16. Iftekhar Ali v. The State (PLD 2013 Sindh 532)
17. Noor Ahmed v. The State (PLD 1964 Supreme Court 120)
6. Mr. Khawaja Muhammad Azeem, the learned counsel for the petitioner in C.P. No.D-134 of 2016 has adopted the arguments of Mr. Khawaja Shams.
7. Mr. Salman Talibuddin, Additional Attorney General for Pakistan has appeared on behalf of the respondents No.1 and 5 in both the petitions and has submitted that under the Constitution (Twenty-First Amendment) Act, 2015 (hereinafter referred to as the Twenty-First Amendment) Article 175 of the Constitution has been amended and now it is not applicable for a period of two years commencing from 07.10.2015, to the trial of persons under any of the Acts mentioned at serial No. 6, 7, 8 and 9 of sub‐part III of Part I of the First Schedule and the Sub-part III of Part I of the First Schedule to the Constitution has also been amended to include, inter alia, Act of 1952, and as a result thereof the provisions of the Act of 1952, as amended under the Act of 2015, have been placed outside the ambit of the restrictions contained in Article 8 of the Constitution, in addition, the Constitutional jurisdiction of the High Courts in respect of any action taken under the Act of 1952 has been excluded under Article 199 (3) of the Constitution. According to him insofar as the Twenty-First Amendment and the Act of 2015 are concerned, the Honble Supreme Court has given categorical observations, so also the other grounds raised by the present petitioners challenging the impugned Letter have already been deliberated and decided by the Honble Supreme Court of Pakistan in the case of District Bar Association Rawalpindi and others vs. Federation of Pakistan and others reported as PLD 2015 SC 401 (SC Judgment) after a detailed discussion and analysis of the amendments to the Constitution, the policy reasons behind the establishment of the Military Courts, and the case law relating to the application of the Act of 1952 for trial of civilians, such as Brig. (Retd) F.B. Ali case (PLD 1975 SC 506) and in view of the observations and findings of the Honble Supreme Court, it is the Federations case that the impugned Letter cannot be held to be illegal or without lawful justification on any ground whatsoever. He has added that the petitioners are not aggrieved persons to whom any prejudice has been caused through the issuance of the impugned Letter, particularly in view of the Supreme Courts finding that even if an offence is incorporated in two separate statutes or provisions providing for trials by two separate forums, the matter can be referred for trial to any of the two forums by virtue of Section 25 of the General Clauses Act, 1897; therefore, merely by virtue of being tried before another validly constituted forum, which also guarantees the accuseds rights under Article 10-A of the Constitution as held by the Honble Supreme Court, it cannot be said that any prejudice is caused to the petitions are liable to be dismissed on this ground alone. According to him, any objection that the petitioners may have with respect to the offences they have been charged with, are liable to be determined by the Military Court itself and in view of the findings in the Honble Supreme Courts Judgment the impugned Letter can only be challenged under Article 199 of the Constitution on limited grounds specified by the Honable Supreme Court itself and therefore, in exercising its limited powers of judicial review, this Court is competent only to determine whether the Federal Governments exercise of its function is coram non judice, without jurisdiction or mala fide, including malice in law, while the Judicial review of the impugned Letter on any other ground would entail an analysis of the factual aspects of the case, which is prohibited under Article 199(3) of the Constitution, and has not been permitted by the Honable Supreme Court as an exception to the said Article. He has also submitted that in so far as the exercising of powers by the Federal Government under the amended Act of 1952 is concerned, all that the Federal Government is authorized to do in deciding to transfer cases, pending or otherwise, for trial under the Act of 1952, is to identify whether the offences for which an accused has been charged with meet the criteria enumerated in the said Act for trial by the Military Court and in order to arrive at such determination, the factual ingredients have already been expressly set out in the said Act itself. According to him, in exercising the powers of judicial review beyond the grounds laid down in the Honble SCs Judgment for challenging the Executives decision to transfer cases to the Military Courts, this Court would be (i) requiring the Executive to exercise a judicial function which it is not mandated to do; (ii) annulling the powers and functions to be exercised by the Executive under the Amendment Act of 1952 and the Constitution; and (iii) nullifying the jurisdiction of the Military Court which has been held to be valid under the Constitution.
8. Refuting the arguments of learned counsel for the petitioners with regard to the issuance of impugned Letter by the Ministry of Interior and its non-publishing in the official Gazette, Mr. Talibuddin has submitted that it is the Federations case that the matter of subject cases for trial under the Act of 1952 is a security matter and hence, falls within the purview of the Ministry of Interior; as such, the impugned Letter has duly been issued by an officer of the Ministry of Interior and cannot be held to be without jurisdiction on the ground that it has not been issued by the Ministry of Law and Justice. He further added that Section 24-A of the General Clauses Act, 1898 requires the Executive to exercise its power to make any order reasonably, fairly, justly and for the advancement to the purposes of the enactment and each of this criteria has duly been fulfilled by the Federal Government for the reasons discussed by the Honble Supreme Court in upholding the Twenty-First Amendment and the Act of 2015. He added that it is the case of the Federation that no prejudice has been caused to the petitioners/accused by transfer of proceedings to another validly established Court. He has further submitted that amended sub-section (4) of Section 2 of the Act of 1952 contains the term sanction, which does not endorse the requirement to notify or issue a notification. In support of his contentions, Mr. Talibuddin has relied upon the case of Saghir Ahmed vs. Province of Punjab and other (PLD 2004 SC 261). He; therefore, finally prayed for the dismissal of both the petitions.
9. Mr. Muhammad Aslam Butt, Deputy Attorney General (DAG) has also appeared on behalf of the respondents No.1 and 5 and has submitted that the procedure with regard to action against the petitioners/accused has been adopted under the Twenty-First Amendment wherein all cases, whether fresh or under trial, were placed before the Provincial Apex Committee, which after detailed deliberation finalized its recommendations which were then forwarded to the Ministry of Interior by the respective Provincial Home Department and then the designated Committee of Interior Ministry comprising of members from Interior Division, Law Division, Advocate General and officials of the Pakistan Army deliberated upon each case in detail and thereafter recommended to the Federal Government for according of the sanction. He has further submitted that all the required formalities in this regard were completed in the cases of the petitioners/accused and; thereafter, their cases were sanctioned for trial under the Act of 1952 alongwith the cases of co-accused persons, who were allegedly involved in the Safoora Goth case. He added that the name of the petitioners/accused were included in the final challan after collecting material evidence against them by the prosecution. He further added that sub-section (4) of Section 2 of the Act of 1952 has an overriding effect on all other laws. He has also submitted that the matter requires detailed deliberation so far as the charge against the petitioners/accused is concerned and also requires recording of the evidences, which could not be done by this Court, as the same could only be done in a trial. He has maintained that the point taken by the learned counsel for the petitioners with regard to mala fide is not available to them. In support of his above contentions, Mr. Butt has placed his reliance on the following case-law:
i.. The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmad khan and others (PLD 1974 Supreme Court 151)
ii. Lt.-General (Retd.) Jamshaid Gulzar, Chairman, FPSC and 4 others v. Federation of Pakistan through Secretary Establishment Division, Islamabad and 2 others (2006 YLR 425)
iii. Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others (PLD 1996 Supreme Court 632)
iv. Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607)
v. Sardar Ahmed Siyal and others v. National Accountability Bureau through Chairman and 4 others (2004 SCMR 265)
vi. Akhtar Ali v. Judge Special Court (Offences in Banks), Punjab Lahore and 3 others (PLD 2004 Lahore 182)
vii. Muhammad Nazim-ud-din v. Chairman, National Accountability Bureau through Director General, National Accountability Bureau, Karachi and 6 others (PLD 2007 Karachi 586)
10. M/s. Sarwar Khan, Additional Advocate General Sindh, Saifullah and Jan Muhammad Khoro, Assistant Advocates General Sindh, have appeared on behalf of the respondents No.2, 3, 4, 6 & 7 and submitted that during course of investigation the role of petitioners/accused, namely, Naeem Sajid, Hussain Usman Siddiqui and Sultan Qamar Siddiqui have been determined by the law enforcement agencies, as they were found joining with a common intention with the mastermind/co-accused Tahir Hussain Minhas, Saad Aziz @ Tintan and others, involved in Safoora Goth case. They have further submitted that the objections raised by the learned counsel for the petitioners could be agitated before the trial and it is the trial Court which is empowered to examine the role of each accused so far the innocence and guilt of petitioners/accused is concerned. According to them, both the petitions being premature are liable to be dismissed. They added that the petitioners have approached this Court with unclean hands just to hamper their trial under the Act of 1952 before the Military Court. They have further submitted that since the petitioners/accused, as per evidence available with prosecution, are facilitators, aiders and abettors of the co-accused persons hence their cases shall be considered at par with that of co-accused persons of Safoora Goth case. In support of their contentions, they placed reliance on the decision given in the case of Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) (2000 SCMR 1969).
11. Mr. Shahadat Awan, Prosecutor General Sindh, has appeared from the prosecution side and while adopting the arguments of Mr. Salman Talibuddin and other learned counsel appearing on behalf of the respondents has maintained that so far as the matter concerning prayer clauses B & C of the petitions are concerned, these issues have already been decided by the Honble Supreme Court of Pakistan in its Judgment in the case of District Bar Association, Rawalpindi. He has further maintained that since the case of all the accused persons involved in Safoora Goth case has been sent to the Military Court for the trial under the Act of 1952, no malice can be ascribed and attributed and in this regard and the prayer of petitioners/accused for their separate trial by the ATC is uncalled for and misconceived. He added that if after the trial the Military Court comes to the conclusion that the prosecution has failed to prove its case against the petitioners/accused, they would be acquitted; hence, these petitions being premature are liable to be dismissed.
12. We have heard all the learned counsel at considerable length and have also perused the record and the decisions relied upon by them.
13. In order to appreciate the contentions of the learned counsel for the parties, we deem it appropriate to reproduce herein below the relevant provisions of the Constitution, Pakistan Protection Act, 2014, Pakistan Army Act 1952 and General Clauses Act, 1897:
Articles 8, 175 and III- Part of First Schedule of the Constitution:
8. Laws inconsistent with or in derogation of Fundamental Rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to
(a) Any law relating to members of the Armed Forces, or of the Police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or
(b) any of the-
(i) laws specified in the First Schedule as in force immediately before the commencing day or as amended by any of the laws specified in that Schedule;
(ii) Other laws specified in, Part I of the First Schedule;
and no such law nor any provision thereof shall be void on the ground that such law or provision is inconsistent with, or repugnant to, any provision of this Chapter.
175. Establishment and jurisdiction of Courts.(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and a High Court for the Islamabad Capital Territory and such other Courts as may be established by law.
Explanation.Unless the context otherwise requires, the words High Court wherever occurring in the Constitution shall include Islamabad High Court.
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from the Executive within [fourteen] years from the commencing day.
Provided that the provisions of this Article shall have no application to the trial of persons under any of the Acts mentioned at serial No. 6, 7, 8 and 9 of sub-part III of Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect.
Explanation: In this proviso, the expression sect means a sect of religion and does not include any religious or political party regulated under the Political Parties Order, 2002.
FIRST SCHEDULE:
LAWS EXEMPTED FROM OPERATION OF ARTICLE 8(1) & (2)
III- Federal Acts
1. ..
2. ..
3. ..
4. ..
5. ..
6. The Pakistan Army Act, 1952 (XXXIX of 1952)
7. The Pakistan Air Force Act, 1953 (VI of 1953)
8. The Pakistan Navy Ordinance, 1961 (XXXV of 1961)
9. The Protection of Pakistan Act, 2014 (X of 2014)
Preamble, Sections 2 (f) and Para (i) & (iii) of the Scheduled Offences of the Protection of Pakistan Act, 2014:
The Protection of Pakistan Act, 2014.
AN ACT
to provide for protection against waging of war or insurrection against Pakistan and the prevention of acts threatening the security of Pakistan.
WHEREAS it is expedient to provide for protection against waging of war or insurrection against Pakistan, prevention of acts threatening the security of Pakistan and for speedy trial of offences falling in the Schedule and for matters connected therewith or incidental thereto.
2. Definitions.-
(f) militant means any person who:
(a) wages war or insurrection against, or
(b) raises arms against Pakistan, its citizens, the armed forces or civil armed forces; or
(c) takes up, advocates or encourages or aids or abets the raising of arms or waging of war or a violent struggle against Pakistan; or
(d) threats or acts or attempts to act in a manner prejudicial to the security, integrity or defence of Pakistan; or
(e) ...........
(g) . ... (h) . ...
(i) . ... (j) ... (k) Schedule means a Schedule annexed to this Act;
(l) Scheduled offences means an offence as set out in the Schedule;
(m) Security of Pakistan shall have the same meaning as is assigned to it in Article 260 of the Constitution.
SCHEDULE
[See section 2(1)]
Scheduled offences.- (1) The following acts, if committed with the purpose of waging war or insurrection against Pakistan or threatening the security of Pakistan shall be the scheduled offences and includes other offences relating to:
(i) Crimes against ethnic, religious and political groups or minorities including offences based on discrimination, hatred, creed and race;
(ii) . .
(iii) Use of arson and bombs on public places, government premises, sites of worship, historical places, business concerns, or other places, and risking or causing death or hurt to any person therein;
Section 2(1)(d)(iii) & (iv), (4) (5), 8(11) and 112, of the Pakistan Army Act, 1952:
2. (1) Persons subject to the Act.- The following persons shall be subject to this Act, namely:
(a) ...
(b) ...
(bb) .. ...
(c) .
(d) Persons not otherwise subject to this Act, who are accused of
(i)
(ii)
(iii) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect; and
(a) raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or
(b) abduct any person for ransom, or cause death of any person or injury; or
(c) possess, store, fabricate or transport the explosives, fire arms, instruments, articles, suicide jackets; or
(d) use or design vehicles for terrorist acts; or
(e) provide or receive funding from any foreign or local source for the illegal activities under this clause; or
(f) act to over‐awe the state or any section of the public or sect or religious minority; or
(g) create terror or insecurity in Pakistan or attempt to commit any of the said acts within or outside Pakistan, shall be punished under this Act; and
(iv) claiming or are known to belong to any terrorist group or organization using the name of religion or a sect and raise arms or wage war against Pakistan, commit an offence mentioned at serial Nos. (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii), (xv), (xvi), (xvii) and (xx) in the Schedule to the Protection of Pakistan Act, 2014 (X of 2014):
Provided that any person who is alleged to have abetted, aided or conspired in the commission of any offence falling under sub‐clause (iii) or sub‐clause (iv) shall be tried under this Act wherever he may have committed that offence:
Provided further that no person accused of an offence falling under sub‐clause (iii) or sub‐clause (iv) shall be prosecuted without the prior sanction of the Federal Government.
Provided further that notwithstanding anything contained in this Act or any other law for the time being in force, any person arrested, detained or held in custody by the armed forces, civil armed forces or law enforcement agencies and kept under arrest, custody or detention before the coming into force of the Pakistan Army (Amendment) Act, 2015 (Act II of 2015) shall be deemed to have been arrested or detained pursuant to the provisions of this Act as amended by the Pakistan Army (Amendment) Act, 2015 (Act II of 2015) if the offence in respect of which such arrest or detention was made also constitutes an offence referred to in sub-clause (iii) or sub-clause (iv).
Provided further that no suit, prosecution or other legal proceedings shall lie against any person in respect of anything which is in good faith done or intended to be done under sub-clause (iii) or sub-clause (iv).
(2) . ..
(3) . ..
(4) The Federal Government shall have the power to transfer any proceedings in respect of any person who is accused of any offence falling under sub‐clause (iii) or sub‐clause (iv) of clause (d) of subsection (1), pending in any court for a trial under this Act.
8. Definitions.
1. .
2. .
3. .
4. .
5. .
6. .
7. .
8. .
9. .
10. .
(11) offence means any act or omission punishable under this Act and includes a civil offence as hereinbefore defined;
112. Rules of evidence to be the same as in criminal courts. Subject to the provisions of this Act; the rules of evidence in proceedings before courts martial shall be the same as those which are followed in criminal courts.
Sections 20-A and 24-A of The General Clauses Acts, 1897,
20-A. Rules and order, etc., to be published.- All rules, Orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette.
24-A. Exercise of power under enactments.- (1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercise reasonably, fairly, justly and for the advancement of the purposes of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially.
(Underlining has been supplied for emphasis)
14. From the contentions of learned counsel for the parties, the following three questions in our view require deliberation:
i. Whether the impugned Letter is in violation of Articles 9, 10, 10-A, 14, 25 and 175 of the Constitution of Islamic Republic of Pakistan, 1973 and Sections 17 & 24 of the Pakistan Protection Act, 2014?
ii. Whether the impugned Letter is in violation of Sections 20-A and 24-A of the General Clauses Act, 1897?
iii. Whether the decision, vide impugned Letter, to transfer the case of petitioners/accused persons for trial under the Act of 1952, as amended, is coram non judice, without jurisdiction or suffering from mala fides including malice in law?
15. A right, as described by Sir John William Salmond, is an interest recognized by the State and protected by rule of law. It can be created and enforced either by a constitutional provision or by an ordinary enactment. When a right is safeguarded by a Constitutional guarantee it is called fundamental right because by doing so it has been placed beyond the power of any organ of the State, whether, Executive or Legislative to act in violation of it. The essential characteristics of fundamental rights are that they impose limitations, expressed or implied, on public authorities, interfering with their exercise. However, absolute and unrestricted individual rights do not exist in any modern State as collective interests of the society; peace and security of the State and the maintenance of public order are of vital importance in any organized society. Thus, the fundamental right can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting fundamental rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. It may further be added that the fundamental rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons that an equilibrium has to be maintained between the two contending interests at stake; one, the individual liberties and the positive rights of the citizen which are declared by the Constitution to be the Fundamental, and the other, the need to impose social control and reasonable limitation on the enjoyment of those rights in the interest of the collective good of the society.
16. It may therefore be noted that the provisions of Article 8 of the Constitution, that contain restrictions for the protection and enforcement of fundamental rights, have not been made applicable to the laws referred to in paragraphs (a) & (b) of Clause (3) of the said Article which, by virtue of the Twenty-First Amendment, also include the Act of 1952 and Act of 2014. By the said amendment, Article 175 of the Constitution that provides establishment and jurisdiction of Courts in Pakistan has also been amended whereby the provisions of said Article have not been made applicable to the trial of persons under any of the Acts mentioned at serial No. 6, 7, 8 & 9 of sub-part III of Part I of the First Schedule, who claims, or is known, to belong to any terrorist group or organization using the name of religion or a sect. it may be relevant to mention here that the vires of the Twenty-First Amendment and Act of 2015 were challenged before the Honble Supreme Court of Pakistan and through a majority decision of 11 Honble Judges (with six dissenting) the petitions challenging the Twenty-First Amendment were dismissed by the Honble Supreme Court of Pakistan in the case of District Bar Association Rawalpindi (supra).
17. Now, we revert to the first question raised by the petitioners. It may be seen that Article 175 of the Constitution, the Federation has the authority to establish the Courts. Since Pakistan has been facing a number of debauchery/ calamitous threats both externally and internally for many years, it was found feasible by the Federation to device a method so that the persons committing heinous crimes should be dealt with strongly in accordance with law. It may be noted that the formation of various Courts for speedy trials was/is not a new phenomenon and in the past also various Courts have been formed for the said purpose, so that the evil doers and persons committing heinous crimes should be put to task, which was also the main reason for the enactment of Twenty-First Amendment and Act of 2015. As extra ordinary situation was prevailing in the country demanding specialized treatment for the persons committing heinous crimes relating to terrorism, waging war and insurrections against Pakistan, it was; therefore, decided that these terrorists/ armed groups, wing and militia or their members propagating terrorism either in the name of religion or sect be dealt with in a speedy manner. In this backdrop it was decided by the Federation to devise a method for speedy trials of these cases falling under the above referred categories. It was then deemed expedient that such like cases should be assigned, after due scrutiny, to the Military Courts so that the trial of those persons falling in the above referred categories could be decided in a shortest possible time. The Honble Supreme Court of Pakistan in its Judgment has dealt with this issue in an erudite manner and has categorically mentioned that formation of these Courts was the need of the time and, therefore, their formation was found to be in accordance with law. The Honble Supreme Court of Pakistan in the case of District Bar Association Rawalpindi (supra). has held the amendments made in this regard, either in the Constitution and other relevant laws, to be in accordance with law and to be validly and effectively been so incorporated in the Statutes. Hence, the objection of the petitioners that the impugned Letter is violative of Articles 9, 10, 10-A, 14, 25 and 175 of the Constitution, is found to be not tenable.
18. The second question raised by the learned counsel for the petitioner is with regard to non-compliance of the provisions of Sections 20-A and 24-A of the General Clauses Act, 1897. Section 20-A (ibid) provides that all rules, orders, regulations and circulars having the effect of law made or issued under any enactment shall be published in the official Gazette. In this regard, it may be observed that only those rules, orders, regulations and circulars are to be published in the official Gazette, that have the effect of law made or issued under any enactment shall be published in the official Gazette. From its plain reading, it is seen that it speaks about the publication of Statutory Instruments in the Official Gazette. The decision or the order of the concerned authority of the Government for the transfer of the trial from one court to another or, as in the instant case, under the Act of 1952 cannot be contemplated as a Statutory Instrument. Even the Act of 2015 does not use the word notification whilst referring to the transfer of cases for trial under the said Act. It has been held by the Apex Court in the case of Saghir Ahmed (Supra) that it depends on the language employed in a particular statute as to whether the provisions regarding publication of a statutory instrument or a notification in the Official Gazette are to be treated as mandatory or directory. We are therefore, of the view that the word notification is to be strictly construed and in the absence thereof, there is no requirement under the law for the impugned Letter to be published in the Gazette.
19. Section 24-A of the General Clauses Act, 1897 stipulates that an authority, office or person, while making any order or giving any direction should exercise its power reasonably, fairly, justly and for the advancement of the purposes of the enactment. Further, Quasi-Judicial or administrative order should give reasons for making the order or issuing the directions, so far as necessary or appropriate. However, in the instant case it cannot be said that no reason while issuing impugned letter was assigned by the Ministry of Interior, Government of Pakistan, as it is clearly mentioned in the third column of the impugned Letter that the petitioners/accused are involved in Crime/FIR No. 195/2015 and they are affiliated with Prescribed Organization, and the description of the case has been given in the fourth column of the impugned Letter as such, the appropriate reasons for issuing the impugned Letter has been given by the concerned authority. Hence, the contentions of learned counsel for the petitioners in this regard are found to be bereft of reasons.
20. So far the third question raised in this petition i.e. whether the decision, vide impugned Letter, is coram non judice, without jurisdiction or suffering from mala fides including malice in law is concerned, it may not be out of context to mention here that the Apex Court of Pakistan in the case of District Bar Association Rawalpindi (supra), while holding the Twenty-First Constitutional amendment as intra vires and the Act of 2015 as not ultra vires the Constitution, observed in sub-paragraph (g) of Paragraph 179 of the Judgment that the decision to select, refer or transfer the case of any accused person for trial under the Pakistan Army Act, 1952, as Amended is subject to Judicial Review both by the High Courts and by this Court inter alia on the grounds of coram non judice, being without jurisdiction or suffering from mala fides including malice in law.
21. An action or a decision is said to be suffering from mala fide on facts if it is taken due to some personal grudge, animosity, or for some personal benefit. Thus, the state of mind of the person, taking action is of great importance. On the other hand, an action is said to be suffering from malice in law if the authority taking the action is not competent to do so or has acted beyond its powers or in violation of the law applicable even though it may have acted bona fide and without ill-will. In other words, malice in law is found when the order has been passed contrary to the objects and purpose of the relevant statute and in abuse of powers conferred upon such authority.
22. It has already been observed by us that the Federal Government has the authority under the law to send the specified cases for trail under the amended Act of 1952; hence, the aspect which requires judicial review by this Court is whether the said exercise has been made by the Federal Government with malafide intention or the said exercise could be termed as malice in law. The petitioners have been nominated as co-accused in FIR No.195 of 2015 registered in respect of Safoora Goth case. It is seen that the Provincial Apex Committee comprising of (1) Secretary Law, (2) Prosecutor General Sindh, (3) Deputy Director General of Pakistan Rangers, (4) representative from ISI, (5) representative from IB, (6) representative of AIGP (Legal) and (7) Additional IGP Sindh, after detailed deliberation selected high profile eighteen (18) cases of grave terrorism and/or immense heinous crimes and referred those cases to the Federal Apex Committee for further action. The Federal Apex Committee then referred those cases to the trail under the amended Act of 1952.
23. It is examined that Safoora Goth case was also one of the 18 cases sanctioned for the trail under the amended Act of 1952 vide impugned Letter, and the petitioners/accused alleged to be the abettors and facilitators of the said crime. From the perusal of record it is apparent that the legal and procedural formalities for the sanctioning of their cases have duly been complied with. Hence, we do not find any malafide or malice in law so far as the sanction of the trail of the petitioners/accused alongwith the co-accused persons of the Safoora Goth case under the amended Act of 2015 is concerned.
24. It was also the contention of the learned counsel for the petitioners that the petitioners were not the abettors or facilitators of the Safoora Goth case and they have falsely been implicated in the said case and they apprehend that they would not have opportunity of fair trial before the Military Court. So far the innocence of the petitioners/accused is concerned, we are afraid; we cannot dilate upon it under the Constitutional jurisdiction of this Court. It is to be decided by the trial Court after recording evidences. As regard alleged apprehension, we are of the view that the answer of such apprehension has already been given by the Honble Supreme Court of Pakistan in its judgment in the case of District Bar Association, Rawalpindi (supra) that the trial and the procedure of the Military Courts would be that of any other ordinary Court dealing with cases of criminal trial which would be dealt in accordance with the norms of criminal justice system. The Honble Supreme Court has also held that any order passed, decision taken or the sentence awarded under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015 are also subject to judicial review both by the High Courts and by the Supreme Court on the ground of coram non judice, without jurisdiction or suffering from mala fides including malice in law. It has also been held by the Honble Supreme Court in the case of Brig. (R) F.B. Ali and another v. The State (PLD 1975 SC 506) that all rights of a criminal trial are available to an accused before a military trial and even those persons who are convicted by the Military Court can approach the superior Courts if they can establish that either the trial was mala fide or without jurisdiction or coram non judice. Hence, the apprehension of the petitioners/accused is found to be misplaced. The case-law cited by the learned counsel for the petitioners are distinguishable so far the facts of the petitions in hand are concerned.
25. We, therefore, in view of what has been stated above, do not find any merit in the instant constitution petitions and dismiss the same accordingly, alongwith the listed application(s).
JUDGE
JUDGE